Thomas Fleiner: Class No Criteria to evaluate Governmental Systems Belgrade Law Faculty Master Course on Comparative Constitutional Review Prof. Lidija Basta Fleiner Prof. Thomas Fleiner November 23 to December

Issues: 1 Democracy 2 Rule of Law 3 Human Rights 4 Problems of Constitutions 5 Conclusion Criteria

Democracy Of the people – by the people – for the people

Why Democracy? Liberty- Self-Determination Finding the Truth Rational Conflict Management Efficiency Majority Participation - Legitimacy Accountability Limit Governmental Power

Democracy, Legitimacy and: …... Efficiency Fragmented Nations Transition Globalization Equality Liberty Rule of Law Tyranny of the Majority Transparency

Types of Democracy Procedural Substantial Direct Represen- tative Semi-direct Winner takes all Consociacional Democracy

Party System Electoral System Separation of Powers Information and Media Accountability Participation Capacity to deliver Effective administration Democracy: Of the people By the people For the people Decentralization Local Governance Minorities Fiscal Governance Collective Rights Minimize Corruption Cooperation

Problems of Democracy Lobbies Principle Of Oligarchie Corruption Public Interest Economy Exclusion Foreigners Minorities Volonté Générale v. Volonté de Tous Media

Representative Democracy RepresentationConstituency Pluralism of Parties The whole people Volonté Générale Higher being Volonté de Tous Interests Electoral System

People 55% Parliament Executive Elections 45% Parties in Government

Semi-direct Democracy Parliament Parties Economy People: Elects and decides Executive Admini- stration Volonté Générale?

Separation of Powers Division of Labour Separation of Powers Checks and Balances New Challenges Media Terrorism Globalization Migration

Limits of Sovereignty Bonhams Case Independence of Judiciary Impartiality of Judges Professionalism of Judicial System Access to Justice Fairness of procedure Adversary – inquisitory procedure Jury - Trial Right to defense Time Mediator - Ombudsperson Rule of Law That men are ruled by law an not by men Justice must be seen to be done

Constitutional Catalogue Restriction Emergency Reference to international law Fairness in Procedure Substantive due Process Constitutional – Administrative review (access to justice) Human Rights Golden Rule: Just as you want others to do for you, do the same for them; no discrimination Human Dignity Expression Information Religion Property Assembly Information Four freedoms Economic and Social Rights: Educa- tion, health, labor, housing

Main Problems of Constitutions Judicial Independence and access to justice Vagueness - implementation Consistency Decentralization Transparency Corruption Accountability Human Rights – restrictions - emergency Constitutional Amendments and Revision Constitutional review Referendum

Conclusions

Criteria Input - output Minorities Transparency Accounta- bility Participation Capacity to Learn Legitimacy Rule of Law Efficiency Minimalise Human Failures